Opinion
No. 37317.
January 23, 1950.
1. Appeal — appellee — review of errors against, not without cross-appeal.
In an action by the plaintiff wherein his demand consists of several items and he recovers judgment for only a part of them, from which judgment the defendant appeals, the plaintiff can secure a review in the appellate court of the items denied him only by cross-appeal.
2. Master and servant — contract of employment condition of employment, license.
When an employee had been engaged in this state as an engineer, the defense to an action by him for his wrongful discharge that he did not have an engineer's license in a certain state where his services might be later needed is not maintained when the employer knew that the employee did not have such a license, and did not make it a condition of the employment that he obtain it, which could easily have been stipulated had it been regarded as an essential part of the contract.
3. Master and servant — duration of employment — negotiations fixing.
When an engineer formerly residing in a distant state had been employed in this state without any time being fixed for the duration of the employment, and in a few days the employee found that on his agreed salary he could not maintain himself and his family, then residing in the distant state, and the employer thereupon agreed to contribute $500 to the expense of moving employee's family and effects to the place of the employment provided the employee would remain in such employment for one year which was accepted by the employee who thereupon moved his family, the original terms of the employment were thereby modified so as to fix the period thereof as for one year from the date of the original employment.
4. Master and servant — ability, fitness, and good conduct implied in employee's contract.
When an employee accepts employment as an engineer the law implies a stipulation by him that he is competent to perform the work undertaken and that he has the requisite skill and knowledge to enable him to do so: that he would do the work in a reasonably efficient and careful manner and would not be guilty of conduct which would substantially affect adversely his employer's business, and this includes refraining from unprovoked insolence or disrespect on his part towards the employer or his superiors, and if it be shown that the employee has not such skill or is guilty of such conduct he may be properly discharged for cause.
5. Trial — evidence — master and servant — evidence of employee's unfitness.
In an action by an employee for his alleged wrongful discharge, it was reversible error to exclude pertinent and substantial evidence, including depositions, offered by the defendant to the effect that the employee did not possess the skill, and did not do the quality of work required by the legal standards implied in his contract of employment and without real provocation, had been guilty of insolent and disrespectful conduct towards his superiors in the employment.
6. Trial — evidence — master and servant — explanatory reasons for interview between.
In an action brought by an employee for his alleged wrongful discharge and when one of the alleged causes therefor was the wrongful conduct of the employee towards two of his superiors in his violent abuse of and threats against them, it was error to exclude a letter from the president of the Board of Registration for Civil and Professional Engineers of the state of the employee's former residence, the letter being admissible not as proof of the facts therein stated but as explanatory of the reason for the interview during which the abusive and threatening language was used by the employee.
7. Master and servant — ground for discharge — existence of — not necessary to state ground if it in fact exists.
If legal ground for the dismissal of an employee during his term exists the motive of the employer in the dismissal is immaterial; it is not necessary that the ground or any ground for the dismissal be stated; nor is the employer confined to the cause stated at the time of the dismissal, if any such was given, but he may avail of any ground which existed at the time whether then known to him or not.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Jones County; F. BURKETT COLLINS, Judge.
Welch, Cooper Welch, for appellant.
I. Our first assignment of error challenges the propriety of the peremptory instruction for $1,000.00 in favor of Handshoe. The court will have observed that the declaration is based upon a contract for `permanent' employment, and will have observed that the contract of employment was made by phone with Lesniak in Laurel, Mississippi, and Handshoe in Sacramento, California. The offer was made over the phone by Lesniak and accepted by Handshoe while he was in California. Under the accepted rules of law that contract and its validity are to be determined under the laws of the State of California. But the laws of California with reference to permanent employment are exactly the same as they are in Mississippi.
In the case of Rape v. Mobile Ohio Railroad Co., 136 Miss. 38, 100 So. 585, this court held that a contract for permanent employment "is terminable at the pleasure of either party". In the case of Lord v. Goldberg, 81 Cal. 596, 22 P. 1126, 15 Am. St. Rep. 82, the Supreme Court of California said: — "Where an employer agrees that the employment shall be permanent as long as the employee desires to make it so, in consideration of the latter's using his best efforts to extend the business, such agreement does not mean that the employment shall be for life, or for any fixed or certain period, but only that it shall continue indefinitely, and until one or the other of the parties shall wish for some good reason to sever the relation." See also Speegle v. Board of Fire Underwriters, 172 P.2d 867, 29 Cal.2d 34.
The record shows throughout that Handshoe was not giving satisfaction to Masonite and this pertained not only to his work or the type of work he was doing, but to his attitude toward his superiors and his fellows in the department in which he was working.
If, therefore, Lesniak's version of the contract is correct and the proof about his unsatisfactory work and attitude is of any value, then we submit that it was for the jury to decide, first, as to what the contract was, and, second, if his services were giving satisfaction.
The appellant offered evidence to show that appellee's attitude was not such as would justify his retention in the employment of appellant. Lesniak swears that the lack of satisfaction in Handshoe's work was "the first one incompetency, then another one, he wasn't tending to his job, he went running around the plant gossiping, and the third was his attitude towards his superiors and fellow workers".
He further says that the incident in his office, the day before, entered into the matter as the final straw.
We have, therefore, the specific question whether a court has the right to direct a jury as to its verdict where there is a question of fact to be decided.
II. We assign as error the action of the court below in declining to direct the jury to return a verdict for this appellant.
Under the holding of this court in the case of Rape v. Mobile Ohio Railroad Co., 136 Miss. 38, 100 So. 585, and in the case of Lord v. Goldberg, 81 Cal. 596, a contract of the nature sued on was held to be terminable at the pleasure of either party. If this suit be on a contract for permanent employment, it is respectfully submitted that the appellant was entitled to a directed verdict.
III. We next assign as error the action of the court below in excluding the evidence of various witnesses as to the happenings on the afternoon prior to the letter of discharge. The facts were to be developed from several witnesses but in each instance the court excluded them and we submit that the court was in error in each instance. We say that this testimony was very vital and was not, as the court below said, "some personal controversy he had with some of the other employees."
Mr. Lesniak was the head of the engineering department. It was he on whom the responsibility was cast to direct and supervise the services of Handshoe. He was not just "some other employee". The record shows without dispute that in the absence of Mr. Lesniak, Mr. Tate Bowen had the authority enjoyed by Mr. Lesniak.
With this setting in mind, we call the court's attention to the fact, which is undisputed on the record, that from the time of the hiring of Handshoe down to the date of the occurrence Lesniak had been endeavoring to obtain a license for Handshoe to practice the profession of a structural engineer in the State of California. Handshoe, of course, denies that he was to have the license. Lesniak says he was. Lesniak swears that he told him that he would be able to get a license as his application was already in. Lesniak swears that he took up with the Board of Registration the matter of getting a license for him with Mr. Paul E. Jeffers who was president of the Board of Registration for Civil and Professional Engineers, which letter appears of record on pages 88-A and 88-B, and pages 149 and 150. He says he called in Mr. Handshoe and handed the letter to him and that Handshoe said to him: "Go ahead and fire me". Lesniak says that he told him that he wanted to discuss it with him and that he and Mr. Bowen had concluded that he was not especially adapted to mechanical work. Thereupon, Handshoe blew up and called Bowen, who was a superior, a liar and said he was framing him. Lesniak says that the conversation continued at a low level and that Handshoe raved like a maniac, and he concluded by saying: "I can get a California license. I'm going to get that man Jeffers if it is the last thing I do — I'm not taking this laying down, I'm going to kill you, I'm going to shoot hell out of you". As Handshoe left he said: — "Now, you have got the facts, it's your move now."
The court will bear in mind that he was threatening to kill the head of his department and calling his assistant a liar and accusing him of framing him. The court held this to be incompetent and sustained the objection.
It does not seem necessary to cite authorities to the effect that insolence toward, and the exhibition of disrespect for, a superior is sufficient ground for discharge. It seems to the writer that if the courts should deny to the manager of a business the right to discharge an employee who threatens to kill the head of the department who has the duty of directing and supervising the insolent employee and calling his assistant a liar, then there will be an end to efficient management or the smooth working of any organization. Ernst v. Grand Rapid Co., 173 Mich. 254, 138 N.W. 1050; Myers v. American Wells Works, 114 F.2d 252; Blue v. Chandler, 5 So.2d 210; Dayton Rubber Co. v. Brown, 156 N.E. 136, 116 Ohio St. 373; Clark v. Pinkerton, 111 Pa. Super. 150, 169 A. 413; Griffin Co. v. Thaxton, 178 Ark. 736, 118 W. 2d 473; White v. Mandel Bros., 248 Ill. App. 313, and Dorrance v. Hoopes, 122 Md. 344, 90 A. 92, Am. Anno. Cases, 1916A.
IV. We next assign as error the action of the court below in excluding from the evidence the deposition of Pecos H. Callahan, Executive Secretary of the State Board of Registration for Civil and Professional Engineers for the State of California, pages 197 to 211, inclusive, of the stenographer's notes, and the deposition of A.G. Standley, Assistant State Highway Engineer of the State of California, pages 213 to 220, inclusive, of the stenographer's notes.
The court will bear in mind that Handshoe in his negotiations with Lesniak stated that he could obtain a license in California as he had an application in. He also stated that he had done millions of dollars worth of work for the State Highway Department of California and led Lesniak to believe that he was a competent structural engineer.
Our defense in this case was based not only upon the insolence and insubord nation of Handshoe but upon his failure to obtain a license in the State of California and his general incompetency.
We submit that these depositions are pertinent and relevant on the issue of competency as well as the issue of being able to obtain a license in the State of California.
Collins Collins, for appellee.
Counsel for the appellant first contends that, if this contract was a contract for permanent employment, appellant had a right to discharge appellee, whether for cause or no cause, and cites the case of Rape v. Mobile Ohio Railroad Company, reported in 100 So. 585. We call the court's attention to this statement in this case: "``permanent employment' means employment for an indefinite period which may be several by either party. Bouv. Law Dict. As a general rule the word `permanent', as applied to employment, is construed to mean that the employee shall retain the position only until one of the contracting parties shall elect to terminate it, and this election may be an arbitrary one without assigning any cause therefor. This construction is uniformly placed thereon, unless it appears that the contract was entered into with some valuable consideration as its basis, as where one agrees to give another permanent employment in settlement of a claim for personal injuries and like instances.'"
We contend in this case that there was a written contract, not a verbal contract, and that there was also a valuable consideration. The consideration was set out in Handshoe's first letter, that he would have to sell his home and move from California to Laurel, Mississippi, at great expense and loss. This notice was given to the Masonite Corporation in the very beginning, and repeated several other times by Handshoe, and his home was finally sold, and he came to Laurel at great expense, which is amply shown in the record, at a great loss of almost $3,000.00. This was again brought to the attention of the Masonite Corporation, and the Masonite Corporation then agreed to bear part of the expense and pay him $500.00 if he would agree to remain with them as long as a year. Now, whether this was a modification of the original contract, or not, it was based upon a valuable consideration, and was a written contract, and was not terminable by the Masonite Corporation except for "some good reason". See Rape v. Mobile Ohio Railroad Co., supra. See also Atlanta Stove Works v. Hamilton, 83 Miss. 704, 35 So. 763; Timberlake v. Thayer, 71 Miss. 279, 14 So. 446, 24 L.R.A. 231; Echols v. N.O.J. G.N.R.R. Co., 52 Miss. 610.
So, we submit that this was a valid contract for permanent employment, based upon a valuable consideration, and was not oral, but written, and is, therefore, enforceable.
Certainly, we think that we would be entitled to recover at least for one year, at $400.00 per month. We do not deny that appellant could not under any circumstances discharge appellee, but we claim that under the facts of this case, appellant had no good reason to breach this contract, and by breaching it without a good reason subjected it to liability to plaintiff for at least his wages.
For instance, Masonite claims that it had a right to discharge appellee because he wasn't a licensed engineer in California, but the testimony makes no issue. It was not a condition of the contract that he should have a license in California, because it employed him, knowing that he did not have a license in California, and as to whether he could get one or not was not a question upon which the employment was based at all, and there is no testimony to that effect.
The record in the case does not show any incident by any testimony where Handshoe was guilty of any conduct, until after he was asked for his resignation. From that time on, the appellant had testimony to the effect that Mr. Handshoe and Lesniak and Bowen had a considerable fracas, but it all grew out of Handshoe's discharge, and was not the cause of the discharge. As the record shows, this happened after Handshoe was asked to resign, as he states on page 91 of the record.
Up to this time, there wasn't one word with reference to any disloyalty or any lack of respect shown to superiors. Of course, from this period on, Mr. Handshoe denies any disrespect, and all the conversation, but the point we make here is that there is no question for the jury to decide, because the difficulty, if there was any, occurred when Lesniak asked Handshoe to resign. Therefore any thing that happened after that time, was incompetent, and the court was right in ruling it out.
As to the next point raised by appellant, that Handshoe was incompetent to perform the work, the court will notice on cross-examination of these witnesess that they could not say in any particular wherein he was disqualified, nor could they name any particular piece of work wherein his work was not satisfactory. We submit that, under this contract, before they had a right to discharge him, they must show some "good reason" for discharging him, and that reason must be based upon specific facts, and not charged generally. His discharge cannot be based upon their whims and caprice, and we submit that their testimony is not sufficient to make it a question for the jury. The charge is too general, and not based upon any facts that the witnesses could point out.
In the case of Atlanta Stove Works v. Hamilton, supra, the court held that, "A discharge of an employee under a contract for a definite term must be in good faith because of dissatisfaction with his work, and not from caprice".
Under Heading III, counsel complains that the facts following the discharge of Handshoe on the evening of the 23rd of June, 1948, should have been submitted to the jury. As we have before stated, this was a controversy, if at all, that occurred after Lesniak had asked for Handshoe's resignation on the ground that he could not get a California license. It has nothing to do with the cause for discharge, but was altogether a result of the discharge, if there was any such controversy at all. All the threats and all the conversation about which counsel complains at the ruling of the court excluding it, occurred after Lesniak had asked Handshoe to resign because he could not have a California license. This seems to us to be clearly incompetent. It would be just as competent to undertake to prove that the next week after Handshoe was fired, he and Lesniak met up on the street and had a fight, if such a thing had occurred. We do not think the law requires Handshoe to have any respect for Lesniak after his discharge. Counsel cites a great many authorities here, but we do not think that we need to reply to them for the reasons that we have set out above.
Under Heading IV, counsel makes the point that the deposition of Pecos H. Callahan, Executive Secretary of the State Board of Education for Civil and Professional Engineers for the State of California, should have been admitted in evidence in the case. We submit that all the facts that were disclosed in this deposition are shown to have occurred before the employment of Handshoe, and the Masonite Corporation had access to them, and yet employed Handshoe in spite of that information, and information having been reviewed by it.
The same is true with reference to A.G. Stanley, Assistant State Highway Engineer of the State of California. He was given as a reference by Handshoe to the Masonite before his employment by the Masonite, and the Masonite stated in their letter that they had reviewed the references, and, so, they knew about what he would say before they employed Handshoe, or could have known what he would have said.
We submit, further, that nowhere in the letter of dismissal does Mr. Lesniak state that Handshoe was incompetent, or insubordinate, or that he made any threats. If such had been the case, it is fair to assume that the facts would have been related in the letter of dismissal. This letter speaks for itself.
On page 125 of the record, Lesniak stated that he investigated Handshoe's references, so now he could not reasonably bring in depositions from people regarding matters which allegedly took place before Handshoe was hired, and to which it had direct reference, and admits that it investigated.
We specifically cite the case of Jackson v. The Railroad Company, 76 Miss. 607, 24 So. 874, as being a case nearest in point to this case. This case cites and approves Carnig v. Carr, 107 Mass. 544, 35 L.R.A. 512, which was approved by the United States Supreme Court in the case of Peers v. Tenn. R.R. Co., 43 L.Ed. 521. See also Atlanta Stove Works v. Hamilton, 83 Miss. 704, 35 So. 763.
Welch, Cooper Welch, in reply.
Appellee states that the letter of dismissal said not one thing about insolence to, and disobedience of, his superiors. In the first place, the letter of dismissal begins: "Following our conversation yesterday with you and Mr. Bowen, we have come to the conclusion that it will be to the best interest of all concerned if you will arrange for employment elsewhere".
The "conversation yesterday" was, as appellant's witnesses say, the tirade and outbreak wherein Handshoe called Bowen a liar and threatened to kill him.
Lesniak in listing the reasons for Handshoe's discharge said that it was brought about by incompetency, inattention to his job and his attitude toward his fellow workers and superiors. He was then asked if the incident of the previous day entered into it and he replied "That was the final straw, yes, sir".
So, therefore, appellee is in error in saying nothing was said about the insolence and insubordination of Handshoe.
Even if nothing had been said, this cuts no legal figure in the case. In the case of Odoneal v. Henry, 70 Miss. 172, 12 So. 154, this was said: "The seventh instruction for appellants should have been given as asked. It states the principle of law applicable, with clearness and accuracy. If good and sufficient reasons for appellee's discharge existed, the appellants may set them up on trial by way of defense, though they may not have known of them at the time of the discharge. It is of no importance whether the employer state the reasons for his action in discharging to the employee. It is of equally small concern whether he really had knowledge of the justifying reason at the time of the discharge. The all-important question is, did good reason actually exist at the time of the discharge? If the employee has been unfaithful and disregardful of his duty under the contract, he may be discharged, and the employer may defend any action for breach of contract brought by the employee, because of his discharge, though ignorant of any or all the facts when the discharge is made. The inquiry on trial is had the employee been unfaithful at the time of the discharge? If yea, it would be remarkable, indeed, if he should be permitted, in a court of justice, to say: `True I was unfaithful, and merited my discharge, but my employer did not then know of my unfaithfulness, and I must be recompensed in damages for my proper discharge because of my employer's ignorance of my misconduct.'"
That this is the general rule, see 35 Am. Jur. p. 471, Section 37.
Handshoe was an employee of Masonite Corporation. His employment began as of January 1, 1948. On June 24, 1948, Masonite discharged him. (Hn 1) Handshoe filed his declaration in this case claiming damages for wrongful discharge. The damages claimed consisted of the balance of his salary accruing after discharge and prior to his being able to obtain other employment, plus $2,622 (less $500 paid him thereon by Masonite), composed of loss in the sale of his home in Sacramento, California; cost of moving himself and family and their household goods from Sacramento to Laurel, Mississippi, and loss in sale of household furniture and replacement thereof to save expense of transportation. The trial court peremptorily instructed the jury to return a verdict for Handshoe in the sum of $1,000 to recover his unpaid salary maturing to the date of the judgment. That was done and judgment entered for Handshoe for that sum. That action and result necessarily disallowed to Handshoe all the foregoing incidental damages claimed by him. He did not appeal, and, therefore, the correctness of the action of the court in that regard is not before us. However, Masonite did appeal from the judgment as entered, which requires us to pass upon the action of the trial judge in directing the jury to return a verdict for that amount.
Masonite itself requested, but was refused, a peremptory instruction. It says we should enter judgment for it here. Two reasons are urged in support of the contention. (Hn 2) We now consider the first reason. It is that the proof shows without contradiction that a condition, or integral part, of the contract of employment was that Handshoe was to have, or obtain, an engineer's license in the State of California; that he did not have or obtain such license and, therefore, Masonite had the right to discharge him. The trial judge took that question from the jury. He himself decided that was not an essential element of the contract. There is little, if any, conflict as to the facts. The doubt arises as to the effect of the undisputed facts. The employment contract rests in some oral conversations but mainly in written communications between the parties in the form of letters and telegrams. However, it is shown without dispute that when Masonite employed Handshoe it knew he did not have an engineer's license in California and it engaged his services regardless of that fact, and no such condition was expressly made a part of the contract. Indeed, it is shown that Masonite agreed to assist Handshoe in obtaining such a license, and it did later do that, without avail. It is true that it was indicated that Masonite might need the services of an engineer in California but that was uncertain. It depended upon whether Masonite later established a plant in that state, which was indefinite when this contract was made. The most that can be deduced from the undisputed terms of the agreement is that Masonite hoped, or perhaps even expected, when the contract was made, that Handshoe would be able to obtain such license, but neither his limited employment, nor his continuing service, depended upon his being able to do that. Such condition could easily have been made an express part of the contract of employment had the condition been an essential part thereof. We affirm the action of the trial judge in this respect.
Appellant urges, as a second ground in support of its request for a peremptory, that this contract was what is known in law as a permanent contract; that it was without consideration other than the consent of the parties, and, therefore, could be cancelled at the pleasure of the employer. Indeed, Handshoe himself appears uncertain as to the duration of the contract, but says if it be considered a permanent contract as to duration it is valid because the incidental damages claimed by him, as above set out, constituted sufficient consideration to support such a contract. Rape v. Mobile Ohio Railroad Co., 136 Miss. 38, 100 So. 585, 35 A.L.R. 1422. (Hn 3) The trial judge decided that the duration of the contract was one year. We think he was correct in that. The original contract was indefinite as to duration but it is shown, without substantial contradiction, that on January 9, Handshoe informed Masonite that because of the expense resulting from his living in Laurel and his family in Sacramento he could not afford to continue in the employ of Masonite at the agreed salary; whereupon, Masonite suggested that he sell his home in California and remove his family and effects to Laurel, agreeing to pay $500 of the expense of such move, but it would contribute that amount only upon the condition that Handshoe agree to remain in such employment for at least one year, and Handshoe agreed to do that. The move was made and the $500 paid upon that condition. That, in the opinion of the trial court and in our opinion, modified the original agreement so as to define the duration of the employment to one year from January 1, 1948. That being true, Masonite had no legal right to discharge Handshoe prior to the one year except for justifiable grounds as hereinafter shown. Bass Furnace Co. v. Glasscock, 82 Ala. 452, 2 So. 315, 60 Am. Rep. 748. Therefore, we conclude that the request of Masonite for a peremptory instruction was properly denied.
But the trial judge also himself decided that no grounds existed for discharge of Handshoe. He excluded all evidence upon that question, and took it from the jury. We think that was error. Handshoe was engaged as a "civil engineer for constructural steel and concrete designs for mechanical layouts and map work." In his application for the job he stated that he was qualified in structural design work "as well as mechanical and electrical and map work". (Hn 4) Even had there been no express representation as to qualification, the law implied a stipulation by him in entering into the contract of employment that he was competent to perform the work undertaken and had the requisite skill and knowledge to enable him to do so; that he would do the work in a reasonably efficient and careful manner, and would not be guilty of conduct which would seriously and substantially affect adversely his employer's business. This includes refraining from unprovoked insolence or disrespect on his part towards the employer or his superiors. 35 Am. Jur., pg. 473, Section 40; page 475, Section 41, and page 480, Section 48. If the employee has not such skill, or is guilty of such conduct, the employer may properly discharge him. Now, (Hn 5) Masonite offered evidence tending to show that the work of Handshoe did not exhibit the skill and was not of the quality of other engineers engaged in similar work and who were not being paid as high a salary as was being paid Handshoe. It offered to prove that in May, 1948, Masonite, in an effort to assist Handshoe in procuring a California license, wrote Mr. Paul E. Jeffers, President of the Board of Registration for Civil and Professional Engineers of California, to which Mr. Jeffers replied, saying Handshoe had been given two oral examinations and could not satisfy the Board as to his ability as a civil engineer; that he failed to report on the date set for a written examination, and had been unsuccessful in attempting to force his registration by the court action; that Lesniak, chief engineer of Masonite, on the afternoon of June 23, called Handshoe into his office to discuss this letter; that Bowen, first assistant to Lesniak, was present; that Handshoe was shown the letter from Jeffers; became very angry; said "Go ahead and fire me"; that Lesniak replied he had simply called him in to discuss the matter; that the witness and Bowen had discussed the question and had come to the conclusion he was not qualified to do the work; that Bowen stated to Handshoe he did not think he was qualified as compared to the other engineers; that Handshoe went into a rage; called Bowen a liar; said he was "going to get Jeffers if it's the last thing I do"; that he was not going to take this "laying down", and, directing his remarks to Lesniak, said, "I'm going to kill you, I'm going to shoot hell out of you"; that Handshoe stalked out of the office, saying, "Now you have got the facts, it is your move now". Appellant offered to prove the foregoing by a number of witnesses. Another witness said Handshoe spoke in very derogatory terms of six of his fellow employees, and said all of these hated him. Handshoe denied all of that. In addition, Masonite offered the deposition of Pecos H. Callahan, Executive Secretary of the State Board of Registration for Civil and Professional Engineers of the State of California, disclosing from the records of that Board the efforts of Handshoe to obtain a California license and the results of his examination for that purpose, and the deposition of A.G. Stanley, Assistant State Highway Engineer of California, who described the quality of work Handshoe had done as Assistant Bridge Engineer in that State. The depositions were excluded. The foregoing evidence was competent — as bearing upon whether or not Handshoe had the requisite skill to do the work for which he was engaged, and whether or not his conduct, aside from his skill, was sufficiently detrimental to the interest of his employer to justify his discharge. And those were questions for determination by the jury — not by the trial judge — under this record. (Hn 6) The letter from Jeffers was competent, not as proof of the facts therein stated, but as explaining the cause and reason for the interview with Handshoe on June 23rd.
The letter discharging Handshoe gave as the specific reason for so doing his inability to obtain a California license. However, the letter did contain these general statements: "Following our conversation yesterday, we have come to the conclusion that it will be to the best interest of all concerned if you will arrange for employment elsewhere". It then set out his inability to obtain the license and added "In view of the above and the fact that Mr. Bowen and I are convinced that you are not especially adapted to detail mechanical work, we wish to advise that your services will no longer be required". Handshoe says it was not competent to introduce any evidence of any reason for his discharge other than the reasons stated in the letter. Even if the statements in the letter are not broad enough to embrace the questions of his skill and qualifications and his conduct and attitude, that did not preclude introduction of evidence to prove those facts, such testimony being within the scope of defendant's pleadings. If the reasons exist, proof may be made of them. It can be readily understood an employer might not wish to take the risk of stating ex curia derogatory reasons for the discharge. This court, in Odeneal v. Henry, 70 Miss. 172, 12 So. 154, 155, stated the rule in these words:
"The seventh instruction for appellants should have been given as asked. It states the principle of law applicable, with clearness and accuracy. (Hn 7) If good and sufficient reasons for appellee's discharge existed, the appellants may set them up on trial by way of defense, though they may not have known of them at the time of the discharge. It is of no importance whether the employer stated the reasons for his action in discharging to the employee. It is of equally small concern whether he really had knowledge of the justifying reason at the time of the discharge. The all-important question is, did good reason actually exist at the time of the discharge? If employee has been unfaithful and disregardful of his duty under the contract, he may be discharged, and the employer may defend any action for breach of contract brought by the employee, because of his discharge, though ignorant of any or all the facts when the discharge is made. The inquiry on trial is, had the employee been unfaithful at the time of the discharge? If yea, it would be remarkable, indeed, if he should be permitted, in a court of justice, to say: `True, I was unfaithful, and merited my discharge, but my employer did not then know of my unfaithfulness, and I must be recompensed in damages for my proper discharge because of my employer's ignorance of my misconduct.'"
The general rule is set out in 35 Am. Jur., p. 471, Sec. 37, as follows:
"If legal grounds for the dismissal of an employee during the term of his employment exists, no importance attaches to the motive which may have actuated the employer in making the dismissal. It is not necessary that an employer, in order to justify a dismissal, show that in dismissing his employee he in fact acted upon the proper ground of dismissal. It is sufficient if a ground of dismissal existed at that time. It is not material whether the employer knew of grounds which in fact existed at the time of discharge; notwithstanding his ignorance, he may avail himself thereof, and in the event of his death, his representative has the same right. Nor is it material that the employer assigned another ground as the cause of the employee's dismissal. The employer may justify a dismissal by relying on a ground different from that assigned at the time of the dismissal."
Reversed and remanded.
Lee, J., took no part in the decision of this case.